Pollio v. Conservation Com'n of Town of Somers, s. 11586

• Decision Date: 20 July 1993
• Docket Number: Nos. 11586,11762,s. 11586
• Citation: 628 A.2d 20,32 Conn.App. 109
• Court: Connecticut Court of Appeals
• Parties: Richard S. POLLIO v. CONSERVATION COMMISSION of the TOWN OF SOMERS et al. Richard S. POLLIO v. PLANNING COMMISSION of the TOWN OF SOMERS et al.

Page 20

628 A.2d 20

32 Conn.App. 109

Richard S. POLLIO v. CONSERVATION COMMISSION of the TOWN OF SOMERS et al.

Richard S. POLLIO v. PLANNING COMMISSION of the TOWN OF SOMERS et al.

Nos. 11586, 11762.

Appellate Court of Connecticut.

Argued April 27, 1993.

Decided July 20, 1993.

David B. Losee, Hartford, with whom were Ronald P. Sherlock, West Hartford, and, on the brief, Holly Jean Bray, Hartford, for appellant (plaintiff).

Michael A. Zizka, with whom, on the brief, was Diane W. Whitney, Hartford, for appellees (defendant Conservation Com'n of the town of Somers et al.).

Thomas W. Fahey, Jr., with whom was Carl T. Landolina, Windsor Locks, for appellees (defendant Planning Com'n of town of Somers et al.).

Before LANDAU, FREDERICK A. FREEDMAN and SCHALLER, JJ.

FREDERICK FREEDMAN, Judge.

The plaintiff appeals from the judgment of the trial court dismissing his appeals from a decision by the Somers planning commission denying his application for subdivision approval with respect to a parcel of land in Somers and a decision by the Somers conservation commission denying his application for a wetlands permit with respect to that land. The issues on appeal to this court in both cases are (1) whether the trial court improperly concluded that the plaintiff was not an aggrieved party and therefore lacked standing to maintain the appeals and (2) whether the trial court improperly denied the plaintiff's "motion to reopen judgment and to reargue the issue of aggrievement." ¹ We affirm the judgment of the trial court.

On April 18, 1990, the conservation commission denied the plaintiff's application for a wetlands permit for the subject property. On October 11, 1990, the planning commission denied the plaintiff's subdivision application. The plaintiff timely appealed to the Superior Court from each decision. In the interests of judicial economy, both appeals were heard by the trial court on March 6, 1992.

At trial, the plaintiff testified and submitted copies of various documents to support his claim of aggrievement. The documentary evidence showed that, on April 28, 1988, the plaintiff and Howard Whitaker, Jr., entered into a written option with respect to 281 acres of land in Somers. The agreement identified Whitaker as the owner of the property and the plaintiff as the purchaser. This option ran through April 30, 1990. The evidence further showed that the plaintiff entered into a series of extensions of the option contract. The first extension, dated April 26, 1990, extended the plaintiff's option to purchase the property until June 30, 1990. The second extension states that the "original agreement is extended to Dec[ember] 30, 91 with all subsequent understandings." This writing is not dated. The plaintiff testified that it was executed in December of 1990, but he was not sure of the specific date. Thereafter, in a writing dated April 18, 1991, the plaintiff and Whitaker restated the terms of their option agreement, extending the plaintiff's option to purchase the land until April 30, 1992. The plaintiff testified that at all times relevant to his appeals and until the date of the hearing before the trial court, he had an option to purchase the subject property. At one point during cross-examination, however, the plaintiff referred to the option as having "expired."

The trial court found that the plaintiff was not continuously aggrieved during the pendency of the appeals. The trial court found that the plaintiff's option had lapsed from June 30, 1990, until some time in December, 1990, when the next extension was executed, a period of at least five months. Additionally, in rendering its decision on May 12, 1992, the trial court further found that the plaintiff's interest in the subject property had lapsed because the last option agreement presented to the court had terminated on April 30, 1992. ²

On June 1, 1992, the plaintiff filed a motion to open the judgment and to reargue the issue of aggrievement in both cases. In that motion, the plaintiff sought to open the judgment to introduce evidence that the option continued during the entire course of the appeal and into the future and that the plaintiff had other interests with respect to the land that would establish aggrievement.

Several documents were attached to the motion. The first was an "amendment" to the April 28, 1988 option agreement extending the terms of the option "to the earlier to occur of (i) the date of Purchaser's receipt of, and the expiration of all applicable appeal periods with respect to, all required permits and approvals from the Town of Somers for the subdivision of the Premises ... or (ii) April 30, 1993." The amendment recites that it is made as of April 30, 1992, but indicates that it was sworn to and signed before a notary public on May 20, 1992. The next document attached to the motion was a May 20, 1992 affidavit of Howard Whitaker, Jr., stating that the option agreement between the plaintiff and Whitaker "has continued in full force and effect, without interruption, since April 28, 1988." The final document attached to the motion was a May 28, 1992 affidavit of the plaintiff. The affidavit states that the option agreement has continued, without interruption, since 1988. The affidavit also states that the plaintiff has expended $351,530 in pursuit of all permits and approvals required by the town with respect to the subject property. Attached to the plaintiff's affidavit was a 1988 power of attorney from Whitaker giving the plaintiff the power to do all acts in Whitaker's behalf in establishing a subdivision of the subject property and a memorandum agreement signed by Whitaker and the plaintiff making the plaintiff responsible for all costs incurred in connection with the exercise of the power of attorney.

The trial court denied the plaintiff's motion to open the judgment, concluding that the plaintiff had failed to show that the proffered evidence was not available at the March 6, 1992 evidentiary hearing. These appeals followed.

Before addressing the merits of the present appeals, we must determine whether we have jurisdiction. As a general rule, we lack jurisdiction to consider an appeal where no practical relief can flow to the appellant from our decision. Delevieleuse v. Manson, 184 Conn. 434, 436, 439 A.2d 1055 (1981). The proposition that "in order to retain standing as an aggrieved person, a party must have and must maintain a specific, personal and legal interest in the subject matter of the appeal throughout the course of the [administrative] appeal"; Primerica v. Planning & Zoning Commission, 211 Conn. 85, 94, 558 A.2d 646 (1989); applies to proceedings before this court as well. See Nader v. Altermatt, 166 Conn. 43, 56, 347 A.2d 89 (1974); Groesbeck v. Sotire, 1 Conn.App. 66, 68-69, 467 A.2d 1245 (1983); see also State v. One 1981 BMW Automobile, 15 Conn.App. 589, 603, 546 A.2d 879 (1988) (Borden, J., concurring). Here, the last option agreement made a part of the record before the trial court indicates that it would terminate, at the latest, on April 30, 1993. That date has passed. The trial court record, then, strongly suggests that this appeal may be moot. If, in fact, the plaintiff no longer holds an option to purchase the subject property, then his appeal is clearly moot. Nader v. Altermatt, supra; Goldfeld v. Planning & Zoning Commission, 3 Conn.App. 172, 486 A.2d 646 (1985).

At oral argument before this court, however, the plaintiff submitted a writing signed on April 23, 1993, by Whitaker and the plaintiff that extends their option agreement to October 31, 1993. The parties stipulated that the record could be amended to include this latest extension of the option agreement. We permitted the filing of the document in this court on April 27, 1993, reserving any determination of its ultimate effect on the question of our jurisdiction.

While our rules do not ordinarily permit us to consider information that is not contained in the trial record, we may do so when a question of mootness is raised. See Nader v. Altermatt, supra; Neumann v. Zoning Board of Appeals, 14 Conn.App. 55, 56 n. 1, 539 A.2d 614 (1988). The defendants do not dispute the existence of a written agreement extending the May 20, 1992 option agreement between Whitaker and the plaintiff to October 31, 1993. We, therefore, conclude that the plaintiff has successfully rebutted the suggestion of mootness presented to us by the trial court record. Neumann v. Zoning Board of Appeals, supra. Accordingly, we may address the substantive issues raised by the plaintiff's appeals.

On the basis of Goldfeld v. Planning & Zoning Commission, supra, the trial court dismissed the plaintiff's appeals after determining that the plaintiff had failed to establish aggrievement. In Goldfeld, we recognized that "[t]he plaintiff's option rights [with respect to the subject property], viewed without regard to their interruption and eventual termination, gave him an interest in the [property] sufficient to demonstrate a specific, personal and legal interest in the commission's decision, and to demonstrate that his interest was specially and injuriously affected by that decision." Id., 3 Conn.App. at 176, 486 A.2d 646. Yet, we concluded that the plaintiff failed to sustain his burden of proving aggrievement throughout the course of his appeal because the option had lapsed during the pendency of the appeal and had terminated by the time the trial court rendered its judgment. Id., 3 Conn.App. at 177, 486 A.2d 646.

The trial court properly recognized that Goldfeld is on all fours with the present case. Here, the trial court found, in accordance with the...